Bruce Goldfarb v. Mayor and City Council of Baltimore ( 2015 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-1825
BRUCE GOLDFARB; MICHAEL GALLAGHER,
Plaintiffs - Appellants,
and
RUTH SHERRILL; ELIZABETH ARNOLD; MERAB RICE; SHERRY MOORE-
EDMONDS; TIM BULL; JULIA DINKINS,
Plaintiffs,
v.
MAYOR AND CITY COUNCIL OF BALTIMORE; CITY OF BALTIMORE
DEVELOPMENT CORPORATION; CBAC GAMING, LLC; CBAC BORROWER,
LLC; MARYLAND CHEMICAL COMPANY, INC.,
Defendants – Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:13-cv-02768-RDB)
Argued: March 25, 2015 Decided: July 1, 2015
Before TRAXLER, Chief Judge, and KING and AGEE, Circuit Judges.
Vacated and remanded by published opinion. Judge Agee wrote the
opinion, in which Chief Judge Traxler and Judge King joined.
ARGUED: Timothy Robert Henderson, RICH & HENDERSON, PC,
Annapolis, Maryland, for Appellants. Mary Rosewin Sweeney,
VENABLE LLP, Baltimore, Maryland; Matthew Wade Nayden, BALTIMORE
CITY SOLICITOR'S OFFICE, Baltimore, Maryland; Donald James
Walsh, OFFIT KURMAN, PA, Owings Mills, Maryland, for Appellees.
ON BRIEF: Thomas M. Lingan, Kenneth L. Thompson, VENABLE LLP,
Baltimore, Maryland, for Appellees CBAC Borrower, LLC, and CBAC
Gaming, LLC; Amy Beth Leasure, Elizabeth R. Martinez, BALTIMORE
CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellees Mayor
and City Council of Baltimore and City of Baltimore Development
Corporation.
2
AGEE, Circuit Judge:
The Resource Conservation and Recovery Act (“RCRA”), 42
U.S.C. § 6901 et seq., “establishes a cradle-to-grave regulatory
program for hazardous waste management.” Envtl. Tech. Council
v. Sierra Club, 98 F.3d 774, 779 (4th Cir. 1996). Several
Maryland residents brought statutory claims under the RCRA
against the current and former owners of an industrial property
in Baltimore alleged to have been contaminated by hazardous
waste. The district court granted the property owners’ motions
to dismiss the claims. For the reasons set forth below, we
vacate the district court’s judgment and remand for further
proceedings.
I. 1
In 2012, the City of Baltimore 2 (“the City”) and CBAC
Gaming, LLC (“CBAC Gaming”) entered into an agreement to develop
a tract of approximately 8.58 acres in Baltimore for use as a
1Given the posture of this case, we accept as true the
facts alleged in the complaint, construing them in the light
most favorable to the plaintiffs-appellants. See Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255
(4th Cir. 2009).
2 The City Council of Baltimore, the Mayor of Baltimore, and
the City of Baltimore Development Corporation are named party
defendants. Though their precise roles varied, the complaint
essentially alleges the same conduct against each of them. For
purposes of this appeal, these parties will be collectively
referred to as “the City.”
3
casino and ancillary facilities (“the Casino Site”). As a part
of the arrangement, the City transferred ownership of some of
the land (the “Warner Street Properties”) to CBAC Borrower, LLC,
a subsidiary of CBAC Gaming, while it retained ownership of the
remaining parcels (the “Russell Street Properties”). 3 Although
ownership of the Casino Site is divided, CBAC Gaming alone will
operate the casino and related facilities.
Prior to the Casino Site development, the property had been
the location of “various industrial uses” for over a century.
(J.A. 18.) In particular, Maryland Chemical Co., Inc.
(“Maryland Chemical”) previously owned the Russell Street
Properties, where it conducted “chemical manufacturing and/or
bulk chemical storage, repackaging and distribution” for
approximately fifty years. (J.A. 18.)
The City also owns adjacent property (the “Waterfront
Parcels”) located between the Casino Site and the Middle Branch
of the Patapsco River. Given the topography of the area, the
Casino Site and Waterfront Parcels “slope[] downward to the
southeast” until reaching the shoreline of the river. (J.A.
3
Defendant CBAC Gaming, LLC “is a consortium of investors
formed to develop and operate the proposed” casino. (Appendix
(“J.A.”) 15.) CBAC Borrower, LLC “is an indirectly wholly-owned
subsidiary of CBAC Gaming.” (J.A. 15.) Although their precise
roles vary, these parties will be referred to collectively as
“CBAC Gaming,” as they can be properly treated as one entity for
the purposes of our analysis.
4
17.) The Waterfront Parcels are used for various recreational
activities, and include a pathway for biking, running, and
walking.
Relying on environmental assessments performed in the 1990s
and early 2000s, Plaintiffs Bruce Goldfarb, Michael Gallagher,
and Tim Bull (collectively “Goldfarb”) allege that hazardous
waste contaminates portions of the Casino Site and has been
migrating to the Waterfront Parcels and Middle Branch.
Goldfarb, who utilizes the recreational activities available in
and around the Waterfront Parcels and Middle Branch, filed a
Complaint in the United States District Court for the District
of Maryland alleging that the City, CBAC Gaming, and Maryland
Chemical’s actions (and inactions) on the Casino Site violate
RCRA.
The City, CBAC Gaming, and Maryland Chemical each moved to
dismiss under Rule 12(b) of the Federal Rules of Civil
Procedure. The district court granted the motions as to all
claims against all defendants, though its specific reasoning was
sometimes imprecise and it varied as to each defendant and
claim. More will be said about the court’s specific rationales
below. 4
4
Several of the district court’s rulings are not challenged
on appeal. It granted a motion to file a surreply brief; it
concluded that although Goldfarb and his remaining co-appellants
(Continued)
5
Goldfarb timely appeals from the district court’s order
dismissing the Complaint. We have jurisdiction under 28 U.S.C.
§ 1291.
II.
“RCRA is a comprehensive environmental statute that governs
the treatment, storage, and disposal of solid and hazardous
waste.” Meghrig v. KFC W., Inc., 516 U.S. 479, 483 (1996). Its
“primary purpose . . . is to reduce the generation of hazardous
waste and to ensure the proper treatment, storage, and disposal
of that waste which is nonetheless generated, ‘so as to minimize
the present and future threat to human health and the
environment.’” Id. at 483 (quoting 42 U.S.C. § 6902(b)); see
also H.R. Rep. No. 94-1491(I), at 4 (1976), reprinted in 1976
U.S.C.C.A.N. 6238, 6241 (stating that the purpose behind RCRA
was to “eliminate[] the last remaining loophole in environmental
law” by regulating the “disposal of discarded materials and
hazardous wastes”).
Although the Administrator of the EPA has chief
responsibility for implementing and enforcing RCRA, “private
had standing to bring this action, several of the other
plaintiffs lacked standing and should be dismissed from the
suit; and it concluded that the plaintiffs had satisfied §
6972(a)’s notice requirements. None of these rulings are
challenged on appeal, and our decision does not affect them.
6
citizens [can] enforce its provisions in some circumstances.”
Meghrig, 516 U.S. at 484 (citing 42 U.S.C. § 6972). In relevant
part, § 6972(a) provides that “any person may commence a civil
action on his own behalf--”
(1)(A) against any person . . . who is alleged to be
in violation of any permit, standard,
regulation, condition, requirement,
prohibition, or order which has become
effective pursuant to [RCRA]; or
(B) against any person . . . who has contributed or
who is contributing to the past or present
handling, storage, treatment, transportation,
or disposal of any solid or hazardous waste
which may present an imminent and substantial
endangerment to health or the environment[.]
“Thus, a suit pursuant to subsection (a)(1)(A) must be based on
an ongoing violation, whereas a suit under (a)(1)(B) may be
predicated on a [qualifying] past [or present] violation.”
Sanchez v. Esso Standard Oil Co., 572 F.3d 1, 7 (1st Cir. 2009)
(emphases added); see discussion infra Section IV.A. As their
plain language indicates, each subsection contains different
elements and targets somewhat different conduct.
Subsection (a)(1)(A) authorizes so-called “permitting
violation claims” to be brought against a defendant who is
alleged “to be [currently] in violation” of a RCRA-based
mandate, regardless of any proof that its conduct has endangered
the environment or human health. The permit, etc., subject to
suit under subsection (a)(1)(A) can be either a state or federal
7
standard that became effective pursuant to RCRA. See §
6972(a)(1)(A); Ashoff v. City of Ukiah, 130 F.3d 409, 411 (9th
Cir. 1997) (“[I]f state standards ‘become effective pursuant to’
RCRA, a citizen can sue in federal court to enforce the
standard.”). This is so because RCRA “authorizes the states to
develop and implement their own hazardous waste management
scheme[s] ‘in lieu of the federal program,’” Safety-Kleen, Inc.
v. Wyche, 274 F.3d 846, 863 (4th Cir. 2001) (quoting 42 U.S.C. §
6926), so long as the state system is at least the “equivalent”
of the federal program. § 6929(b). Maryland is authorized to
operate such a parallel regulatory system, and has adopted the
statutory and regulatory framework to do so. See Notice of
Final Determination on Maryland’s Application for Final
Authorization [under RCRA], 50 Fed. Reg. 3511 (Jan. 25, 1985).
To remedy a subsection (a)(1)(A) violation, the district court
has authority to enforce the “permit, standard, regulation,
condition, requirement, prohibition, or order” at issue. §
6972(a).
At the same time, subsection (a)(1)(B) authorizes so-called
“imminent and substantial endangerment” claims to be brought
against a defendant whose conduct –- whether ongoing or purely
in the past –- “may” now pose an “imminent and substantial
endangerment to health or the environment.” In contrast to
claims brought under subsection (a)(1)(A), claims under
8
subsection (a)(1)(B) may be brought regardless of whether the
plaintiff can demonstrate that the defendant’s actions violated
a specific RCRA-based permit, etc. See AM Int’l, Inc. v.
Datacard Corp., 106 F.3d 1342, 1349-50 (7th Cir. 1997). The
district court has authority to restrain any person who has
“contributed or who is contributing to the past or present
handling, storage, treatment, transportation, or disposal of any
solid or hazardous waste” referenced in subsection (a)(1)(B). §
6972(a).
Lastly, to remedy a violation of either subsection, the
district court has authority “to order [a defendant] to take
such other action as may be necessary.” § 6972(a).
We review de novo both the district court’s Rule 12(b)
dismissal and its statutory interpretation. Pitt Cnty. v.
Hotels.com, L.P., 553 F.3d 308, 311 (4th Cir. 2009) (Rule
12(b)(1) dismissal); Eisenberg v. Wachovia Bank, N.A., 301 F.3d
220, 222 (4th Cir. 2002) (Rule 12(b)(6) dismissal); In re
Sunterra Corp., 361 F.3d 257, 263 (4th Cir. 2004) (statutory
construction).
III. Claims Against CBAC Gaming
The Complaint alleges that although CBAC Gaming agreed to
engage in certain remedial activities as part of the
construction of the casino and its ancillary facilities, those
9
undertakings did not comply with RCRA and so did not adequately
address contamination at the Casino Site. Furthermore, the
Complaint alleged that CBAC’s Casino Site construction
activities would continue to contribute to and exacerbate
existing contamination in the soil and groundwater, as well as
its migration to the Waterfront Parcels and Middle Branch. In
particular, Goldfarb pled that CBAC Gaming’s development actions
violated subsection (a)(1)(A) because they entailed generating,
treating, storing, disposing of, and transporting hazardous
wastes without the requisite permits. In addition, the
Complaint alleged CBAC Gaming’s construction activities violated
subsection (a)(1)(B) because they contributed to hazardous waste
contamination that presented an imminent and substantial
endangerment to human health and the environment.
CBAC Gaming moved to dismiss the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(1) for lack of subject
matter jurisdiction and Rule 12(b)(6) for failure to state a
claim. In relevant part, CBAC Gaming contended that the claims
against it should be dismissed under RCRA’s anti-duplication
provision, 42 U.S.C. § 6905(a). According to CBAC Gaming, its
National Pollutant Discharge Elimination System (“NPDES”)
permit, which permitted discharge of stormwater during
construction of the casino, shielded it from RCRA liability.
10
The district court granted CBAC Gaming’s motion to dismiss
based on that general defense. The court’s analysis was
somewhat convoluted, but tracked the following course: Under
RCRA’s anti-duplication provision, activities regulated by the
Clean Water Act (“CWA”) cannot also be regulated by RCRA if
enforcement of both Acts would lead to inconsistent
requirements. See § 6905(a). The CWA regulates, among other
things, the discharge of pollutants from point sources into
navigable waters. To comply with the CWA, Maryland issued a
general construction stormwater permit (the NPDES permit), and
CBAC Gaming was required to comply with that permit during the
course of the casino construction activities. Under the terms
of the NPDES permit, CBAC Gaming must comply with erosion and
sediment control and stormwater management plans. Those plans,
in turn, mandated that CBAC Gaming comply with specific
remediation activities set forth in a Response Action Plan
(“RAP”) that CBAC Gaming voluntarily performed as part of its
participation in Maryland’s Voluntary Cleanup Program. As a
result, the remediation activities contained in the RAP had
effectively been incorporated into the provisions of the NPDES
permit and were no longer voluntary. The NPDES permit thus
regulated more than just point source stormwater discharge from
the Casino Site, but also covered CBAC Gaming’s other
construction activities at the Casino Site by virtue of the
11
erosion and sediment control and stormwater management plans and
the RAP. So long as CBAC Gaming complied with those approved
activities, the NPDES permit shielded CBAC Gaming from liability
under the CWA. Following this path of reasoning, the district
court concluded that the NPDES permit shielded CBAC Gaming from
liability under RCRA since “further remedial requirements
imposed under RCRA would be inconsistent with the remedial
activities already deemed appropriate for the [Casino] Site”
under the NPDES permit. (J.A. 81.)
In granting the motion to dismiss as to CBAC Gaming, the
district court did not state whether its ruling was based upon
Rule 12(b)(1) or Rule 12(b)(6). Recognizing the district
court’s lack of clarity on this point, the parties devote
considerable space on brief to threshold issues that are
contingent upon which rule the district court in fact utilized.
For example, only under Rule 12(b)(1) would it matter whether
RCRA’s anti-duplication provision implicates subject matter
jurisdiction. What is more, our inquiry would not be as
concerned with what materials the district court relied on to
reach its conclusion. E.g., In re KBR, Inc., 744 F.3d 326, 333-
34 (4th Cir. 2014) (“When a defendant challenges subject matter
jurisdiction via a Rule 12(b)(1) motion to dismiss, the district
court may regard the pleadings as mere evidence on the issue and
may consider evidence outside the pleadings without converting
12
the proceeding to one for summary judgment. However, when the
jurisdictional facts are inextricably intertwined with those
central to the merits, the district court should resolve the
relevant factual disputes only after appropriate discovery.”
(internal alterations, quotation marks, and citations omitted)).
By contrast, only under Rule 12(b)(6) does it matter whether the
district court violated Rule 12(d)’s limitation on what
materials the court can rely on without converting the motion to
dismiss into one for summary judgment. Accord Fed. R. Civ. P.
12(d) (specifying the process a court must follow when
converting a Rule 12(b)(6) motion to dismiss to a motion for
summary judgment after a district court has been presented with
and not excluded “matters outside the pleadings”); Hall v.
Virginia, 385 F.3d 421, 424 n.3 (4th Cir. 2004) (observing that
a court does not convert a motion to dismiss to a motion for
summary judgment when it takes judicial notice of public
records); Zak v. Chelsea Therapeutics Int’l Ltd., 780 F.3d 597,
607 (4th Cir. 2015) (same, for judicial notice of adjudicative
facts under Federal Rule of Evidence 201).
In some cases it could be appropriate to remand for the
district court to clarify the basis for its determination.
Here, however, we must vacate the district court’s ruling
because dismissing the Complaint under either Rule 12(b)(1) or
13
Rule 12(b)(6) was incorrect. A remand for clarification would
thus be pointless.
A. Rule 12(b)(1)
“To ward off profligate use of the term ‘jurisdiction,’”
the Supreme Court “adopted a ‘readily administrable bright line’
for determining whether to classify a statutory limitation as
jurisdictional.” Sebelius v. Auburn Reg’l Med. Ctr., 133 S. Ct.
817, 824 (2013) (quoting Arbaugh v. Y & H Corp. 546 U.S. 500,
516 (2006)). Absent Congress “clearly stat[ing] that a
threshold limitation on a statute’s scope shall count as
jurisdictional,” “courts should treat the restriction as
nonjurisdictional in character.” Arbaugh, 546 U.S. at 515, 516.
Assuming the district court viewed the RCRA anti-duplication
provision as jurisdictional, and dismissed under Rule 12(b)(1)
for lack of jurisdiction, it erred. 5
While the anti-duplication provision may ultimately bar a
plaintiff from obtaining relief in a RCRA suit, that result does
not mean that the statutory limitation is a jurisdictional
5The district court’s opinion gives us some basis for
inferring that it relied on Rule 12(b)(1). Most pointedly, the
district court addressed the claims against CBAC Gaming in a
different section than the one containing the heading: “Failure
to State a Claim Under Rule 12(b)(6) and Iqbal/Twombly,” which
introduces the court’s analysis as to the other defendants.
(J.A. 82.)
14
barrier to recovery. See Arbaugh, 546 U.S. at 515. Instead,
when we examine its plain language, § 6905(a) does not suggest a
jurisdictional character:
Nothing in this chapter [i.e., RCRA] shall be
construed to apply to (or to authorize any State,
interstate, or local authority to regulate) any
activity or substance which is subject to the [CWA] .
. . except to the extent that such application (or
regulation) is not inconsistent with the requirements
of [the CWA, among other federal statutes].
§ 6905(a).
The statute simply instructs that RCRA provisions must give
way when enforcement would be “inconsistent” with any of the
other delineated acts. See Coon ex rel. Coon v. Willet Dairy,
LP, 536 F.3d 171, 174 (2d Cir. 2008) (relying on the anti-
duplication provision to prohibit plaintiff’s RCRA claims
challenging identical activities authorized by a CWA-based
permit). Given § 6905(a)’s silence as to jurisdiction and the
Supreme Court’s guidance, we conclude that the anti-duplication
provision implicates the viability of an RCRA cause of action
rather than the court’s jurisdiction to hear the claim. See
Verizon Md., Inc. v. PSC, 535 U.S. 635, 642-43 (2002) (“‘[T]he
absence of a valid (as opposed to arguable) cause of action does
not implicate subject-matter jurisdiction, i.e., the court’s
statutory or constitutional power to adjudicate the case.’ As
we have said, ‘the district court has jurisdiction if the right
of the petitioners to recover under their complaint will be
15
sustained if the Constitution and laws of the United States are
given one construction and will be defeated if they are given
another,’ unless the claim ‘clearly appears to be immaterial and
made solely for the purpose of obtaining jurisdiction or where
such a claim is wholly insubstantial and frivolous.’” (quoting
Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 89
(1998))). Viewed through this lens, the anti-duplication
provision is more in the nature of an affirmative defense like
the statute of limitations or the failure to exhaust
administrative remedies, which are to be timely asserted by a
defendant who chooses to do so. See Hosanna-Tabor Evangelical
Lutheran Church & Sch. v. EEOC, 132 S. Ct. 694, 709 n.4 (2012)
(noting a dispute amongst federal circuit courts as to whether
the ministerial exception to employment discrimination claims
was “a jurisdictional bar or a defense on the merits,” and
concluding that it “operates as an affirmative defense to an
otherwise cognizable claim, not a jurisdictional bar . . .
because the issue presented by the exception is ‘whether the
allegations the plaintiff makes entitle him to relief,’ not
whether the court has ‘power to hear the case’” (internal
quotation marks and alterations omitted)). Accordingly, it
would have been error to dismiss the Complaint against CBAC
Gaming for lack of subject matter jurisdiction pursuant to Rule
16
12(b)(1) because a defense to liability under RCRA based on §
6905(a) does not implicate jurisdiction.
B. Rule 12(b)(6)
In a Rule 12(b)(6) context, the reviewing court must
determine whether the complaint alleges sufficient facts “to
raise a right to relief above the speculative level” and “to
state a claim to relief that is plausible on its face.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). This
directive ordinarily limits a court’s review to the “well-pled
facts in the complaint[, which it must view] in the light most
favorable to the plaintiff.” Brockington v. Boykins, 637 F.3d
503, 505 (4th Cir. 2011); see also Clatterbuck v. City of
Charlottesville, 708 F.3d 549, 557 (4th Cir. 2013). While no
absolute bar exists, a motion to dismiss under Rule 12(b)(6)
does not typically resolve the applicability of defenses to a
well-pled claim. See Tobey v. Jones, 706 F.3d 379, 387 (4th
Cir. 2013) (stating a motion to dismiss under Rule 12(b)(6)
“does not resolve contests surrounding facts, the merits of a
claim, or the applicability of defenses”).
Under narrow circumstances, a court may rely on extrinsic
materials to determine a motion to dismiss without converting
the proceeding into a motion for summary judgment. See Fed. R.
Civ. P. 12(d) (discussing when conversion occurs and what
17
process must be followed to make it proper); see also Zak, 780
F.3d at 606-07 (discussing when extrinsic materials may be
considered without implicating Rule 12(d)). For example, a
court may properly take judicial notice of “matters of public
record” and other information that, under Federal Rule of
Evidence 201, constitute “adjudicative facts.” 6 Philips v. Pitt
Cnty. Mem’l Hosp., 572 F.3d 176, 180 (4th Cir. 2009); see Fed.
R. Evid. 201(b) (stating, in relevant part, that a “court may
judicially notice a fact that is not subject to reasonable
dispute because it” “can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned”);
Clatterbuck, 708 F.3d at 557 (“[C]ourts may consider relevant
facts obtained from the public record, so long as these facts
are construed in the light most favorable to the plaintiff along
with the well-pleaded allegations of the complaint.” (internal
quotation marks omitted)).
The parties raise multiple arguments regarding the district
court taking judicial notice of certain “facts” in order to
decide the motion to dismiss, if indeed the district court did
so. Goldfarb asserts the district court converted the motion to
dismiss into a motion for summary judgment in violation of Rule
12(d). CBAC Gaming responds that the court did not violate this
6 “Adjudicative facts are simply the facts of the particular
case.” Fed. R. Evid. 201, Advisory Committee’s note.
18
provision because it could have properly taken judicial notice
of each of the exhibits it relied on as the basis for its
analysis. In particular, it contends that the NPDES permit, the
City-approved erosion and sediment control plans and stormwater
management plans, and the RAP are each public records containing
adjudicative facts subject to judicial notice under Rule 201 of
the Federal Rules of Evidence. 7 CBAC Gaming maintains that once
the district court in effect took judicial notice of those
exhibits and their contents, it was free to interpret their
meaning and draw legal conclusions. Goldfarb, in turn, replies
that the district court never claimed it was taking judicial
notice and therefore necessarily failed to identify what facts
it was noticing or provide Goldfarb with notice and an
opportunity to respond. Furthermore, Goldfarb contends the
exhibits are not public records and that even if the court could
properly take notice of their existence, it erred by then
relying on their contents for the truth of the matters asserted
therein.
7
For example, CBAC Gaming points to language in the NPDES
permit not only requiring it to “develop and obtain approval . .
. of . . . erosion and sediment control plans . . . and . . .
stormwater management plans,” Appellees’ Designated Exhibits
(“Ex.”) 169 (§ II.A.3), but also stating that “[v]iolations of
plans for construction activity, including applicable Erosion
and Sediment Control and Stormwater Management Plans, constitute
violations of this permit, State law, and the CWA.” (Ex. 176, §
VI.A.) It then notes that those plans, in turn, were “subject
to the provisions in the final RAP.” (Ex. 26, § C 50-06.)
19
Goldfarb is correct at least to the extent that the
district court did not explicitly state that it was taking
judicial notice of particular “facts,” let alone identify what
those “facts” were. Nevertheless, even if we assume that the
taking of judicial notice was part of the court’s decisional
process, we need not address whether the act of taking such
notice was erroneous. There are two reasons for this
conclusion: First, regardless of how the district court
proceeded, we, too, are authorized to take judicial notice in an
appropriate case. Fed. R. Evid. 201(d) (“The court may take
judicial notice at any stage of the proceeding.”); Massey v.
Ojaniit, 759 F.3d 343, 353 (4th Cir. 2014) (observing that an
appellate court may take judicial notice of the same materials
as could a district court). Second, even assuming the district
court could properly take judicial notice of the contents of the
exhibits, the court’s specific legal analysis was incorrect.
To grant the motion to dismiss under Rule 12(b)(6), the
district court would have to conclude that § 6905(a) barred a
RCRA cause of action as pled against CBAC Gaming because
enforcement of RCRA would be “inconsistent” with the CWA. The
district court opined to that effect, stating that any “further
remedial requirements imposed under RCRA would be inconsistent
with the remedial activities already deemed appropriate” for the
20
Casino Site pursuant to the CWA (via the NPDES permit and the
documents it incorporated). (J.A. 81.)
Since § 6905(a) (or any other RCRA provision of which we
are aware) does not define “inconsistent,” we give this word its
ordinary dictionary meaning: “lacking consistency: incompatible,
incongruous, inharmonious . . . so related that both or all
cannot be true.” Webster’s Third Int’l Dictionary 1144; see
also Black’s Law Dictionary (10th ed.) (“Lacking agreement among
parts; not compatible with another fact or claim.”); Oxford
English Dictionary (“at variance, discordant, in compatible,
incongruous”). To be “inconsistent” for purposes of § 6905(a),
then, the CWA must require something fundamentally at odds with
what RCRA would otherwise require. See Edison Elec. Inst. v.
EPA, 996 F.2d 326, 337 (D.C. Cir. 1993) (rejecting anti-
duplication provision argument where petitioners were “unable to
point to any direct conflict between” RCRA and another act
listed in § 6905(a)). RCRA mandates that are just different, or
even greater, than what the CWA requires are not necessarily the
equivalent of being “inconsistent” with the CWA.
Although the district court recited the statutory term
“inconsistent,” it undertook no analysis in its opinion to
determine whether a conflict actually existed between the
applicable RCRA regulations and the CWA, much less what
constituted such a conflict. Instead, the district court’s
21
analysis overstates when regulation pursuant to RCRA yields to
the CWA. It is not enough that the activity or substance is
already regulated under the CWA; it must also be “incompatible,
incongruous, inharmonious.” The district court’s conclusion is
thus built on the faulty premise that the CWA and RCRA cannot
regulate the same activity under any circumstance. 8 See New
Mexico v. Watkins, 969 F.2d 1122, 1131 (D.C. Cir. 1992) (stating
§ 6905(a) “contemplates joint regulation under both RCRA and
[another act listed in § 6905(a)] in certain circumstances”).
The district court never stated what the NPDES permit, erosion
and sediment control and stormwater management plans, or RAP
regulated that was “inconsistent” with the alleged obligations
of CBAC Gaming under RCRA. Nor did the court examine what
actions Goldfarb pled CBAC Gaming was required to undertake to
comply with RCRA that were “inconsistent” with the NPDES permit
and its derivative documents.
The district court simply did not undertake a basic
comparison, at least not one discernible from the record, to
consider whether RCRA would have required anything of CBAC
8 The district court also found it significant that
Goldfarb’s Complaint did not argue that CBAC Gaming had violated
any of the erosion and sediment control and stormwater
management plans or the RAP. This, too, does not resolve the
inconsistency inquiry under the anti-duplication statute because
CBAC Gaming could be in full compliance with those requirements
and yet still be in violation of RCRA.
22
Gaming that would be “inconsistent” with what CBAC Gaming was
already required to do to comply with the CWA. Instead, the
district court broadly concluded that since all of CBAC Gaming’s
construction activities would satisfy the CWA as a result of the
CWA’s permit shield, requiring anything “further” under RCRA
would be “inconsistent” with the CWA. As set forth above, more
was required. We therefore vacate and remand the district
court’s decision, if based on Rule 12(b)(6), for the failure to
identify how the Complaint’s RCRA allegations are “inconsistent”
with the CWA. But in so doing, we also note that the procedural
posture of this case presents a further ground of concern
relating back to the proper scope of a court’s review of matters
outside the pleadings and the taking of judicial notice. The
maze of cross-references to exhibits and interpretations of
specific provisions within them makes this case particularly
ill-suited to adjudication at the motion to dismiss stage. As
noted, CBAC Gaming raised the anti-duplication provision as a
potential defense to liability, and it relied almost exclusively
on exhibits outside the Complaint in doing so. That alone
inclines against deciding the case under Rule 12(b)(6). See
Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007)
(discussing “the relatively rare circumstances where facts
sufficient to rule on an affirmative defense are alleged in the
23
complaint” such that the defense could be the basis for
dismissal under Rule 12(b)(6)).
Furthermore, the parties vehemently disagree about the
nature and scope of the NPDES permit and other exhibits, putting
at issue basic factual matters relevant to interpreting what
those exhibits mean and how they relate to the RCRA claims pled
against CBAC Gaming. We have intentionally bypassed these
arguments and refrained from mining the exhibits to determine
what, if anything, we could take judicial notice of on appeal.
See Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d 177,
216 (4th Cir. 2009) (declining to take judicial notice of permit
decision documents and other exhibits because the party seeking
notice sought “notice of its own interpretation of the contents
of those documents” and not just notice of their existence). We
are mindful that judicial notice must not “be used as an
expedient for courts to consider ‘matters beyond the pleadings’
and thereby upset the procedural rights of litigants to present
evidence on disputed matters.” Waugh Chapel S., LLC v. United
Food & Commercial Workers Union Local, 728 F.3d 354, 360 (4th
Cir. 2013).
24
For all these reasons, we vacate the district court’s
judgment granting CBAC Gaming’s motion to dismiss, and remand
for further proceedings consistent with this opinion. 9
IV. Claims Against The City
The district court dismissed the § 6972(a)(1)(A) and
(a)(1)(B) claims against the City for failure to state a claim.
As noted, to survive a Rule 12(b)(6) motion, “a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570). This standard requires the complaint to do more than
plead facts that are “‘merely consistent with’ a defendant’s
liability,” but must “allow[] the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (quoting Twombly, 550 U.S. at 557). A complaint
should “not be dismissed as long as [it] provides sufficient
detail about [the] claim to show that [the plaintiff] has a
9 CBAC Gaming urges us to affirm the district court’s
decision on the alternative basis that it would be appropriate
to dismiss the claims against it under a Rule 12(b)(6) analysis
that concluded the Complaint failed to adequately allege each
component of a § 6972(a)(1)(A) and (B) claims. Given our
disposition of the claims against the City and Maryland
Chemical, and that we have limited our analysis to those matters
addressed by the district court with respect to each defendant
and claim, we will similarly limit our review of the claims
against CBAC Gaming.
25
more-than-conceivable chance of success on the merits.” Owens
v. Balt. City State’s Attorneys Office, 767 F.3d 379, 396 (4th
Cir. 2014).
A. Section 6972(a)(1)(A) Claim
The Complaint alleges the City’s “acts and/or omissions”
with respect to the Casino Site failed to comply with RCRA, in
violation of § 6972(a)(1)(A). (J.A. 32.) Concluding that the
Complaint contained inadequate factual allegations and details
pertaining to the alleged contamination at the Casino Site and
its potential migration off site, the district court dismissed
the Complaint for failure to state a claim under Rule 12(b)(6).
(J.A. 86.) In doing so, the court cited three specific pleading
deficiencies: that the Complaint (1) did not contain any
“factual allegations to explain how the removal of contaminated
soil and/or sources of potential contaminants actually
exacerbated or contributed to contamination at the Site”; (2)
did not provide any “factual details pertaining to the alleged
storage and/or abandonment of leaky drums, [nor had it]
identified the specific contaminants associated with that
alleged ‘disposal’”; and (3) did not plausibly allege facts to
support “that the migration of contaminants at the Site occurred
during the City’s ownership of the Site.” (J.A. 86.)
26
Goldfarb argues on appeal that the district court erred
because the Complaint alleges specific facts, which if proven,
would support the City’s liability under RCRA. The City
responds that since the only acts the Complaint alleges it to
have undertaken involve the removal of contamination from the
Casino Site, there is no set of facts under which it could be
liable for generating, handling, treating, storing,
transporting, or disposing of hazardous or solid waste as
required by RCRA.
We agree with Goldfarb that the Complaint sufficiently
alleges an ongoing § 6972(a)(1)(A) violation so as to survive a
motion to dismiss. The shortcomings the district court
identified either do not exist or did not have to be pled to
state a claim at this stage of the proceedings.
To state a claim under subsection (a)(1)(A), Goldfarb had
to allege an ongoing “violation of any permit, standard,
regulation, condition, requirement, prohibition, or order which
has become effective pursuant to” RCRA. In Paragraphs 91-93,
the Complaint alleges the City “allowed illegally stored and/or
abandoned drums containing hazardous wastes to leak, spill
and/or otherwise release into the Casino Site”; “excavated,
moved, mixed, stockpiled, backfilled and/or graded contaminated
soils and groundwater”; and “excavat[ed], mov[ed]; mix[ed];
backfill[ed]; and/or grad[ed] contaminated soils and/or
27
groundwater located in and around known hot spots of PCE, TCE
and heavy metals.” (J.A. 28.) Paragraphs 94-99 allege various
activities CBAC Gaming is alleged to have undertaken as part of
the casino-related construction, and although CBAC Gaming is the
primary developer, the City owns some of the property on which
those activities are occurring. Paragraph 101 asserts that the
City has
caused, contributed to and/or exacerbated and will
continue to cause, contribute to and/or exacerbate the
contamination in the soils and groundwater at the
Casino Site and the Waterfront Parcels and the ongoing
migration of contamination off-site by, among other
things, excavating, moving and mixing hot spots of
contamination and/or exposing contaminants in and
under the Casino Site and the Waterfront Parcels to
increased infiltration of rain water.
(J.A. 29-30.)
The Complaint ties these allegations specifically to
subsection (a)(1)(A) by alleging: that the City’s activities
make it “the current owner[] and operator[] of an unpermitted
hazardous waste, treatment, storage or disposal facility” (¶
117, J.A. 32); that the City “generated ‘solid waste’ and/or
‘hazardous waste’” without complying with applicable standards
(¶¶ 118, 122, J.A. 33); that the City’s construction activities
entailed the treatment, storage, and/or disposal of hazardous
waste at the Casino Site, and that the City lacked the requisite
permits for owning and operating such a facility (¶¶ 120, 123,
124, J.A. 33-34); and that the above violations “have never been
28
remedied and therefore, are ongoing” (¶ 125, J.A. 34). In
conjunction with these allegations, the Complaint cites specific
rules promulgated pursuant to RCRA, which Goldfarb contends
apply to the City’s activities. (J.A. 32-34.)
The foregoing paragraphs in the Complaint assert specific,
identifiable actions attributed to the City that allegedly
violated RCRA-based mandates, have gone uncorrected, and
continue unabated such that the City is still “in violation of”
those mandates. We have only briefly touched on subsection
(a)(1)(A)’s requirement of an ongoing or current violation,
which arises from the statute’s “to be in violation of”
language. In Gwaltney of Smithfield v. Chesapeake Bay Found.,
Inc., 484 U.S. 49 (1987), the Supreme Court interpreted
identical language in the CWA to require that for the alleged
harm to be cognizable, it must “lie[] in the present or the
future, not in the past.” Id. at 59. That is to say, “to be in
violation” does not cover “[w]holly past actions,” but rather
requires allegations of a “continuous or intermittent
violation.” Id. at 57. We find it logical and appropriate to
apply the same meaning to § 6972(a)(1)(A)’s “to be in violation
of” requirement. Indeed, other federal circuit courts have done
the same. E.g., Parker v. Scrap Metal Processors, Inc., 386
F.3d 993, 1010 n.20 (11th Cir. 2004) (interpreting §
6972(a)(1)(A)’s “to be in violation of” requirement under
29
Gwaltney to require “a continuous or ongoing violation . . . for
liability to attach”); Conn. Coastal Fishermen’s Ass’n v.
Remington Arms Co., Inc., 989 F.2d 1305, 1315-16 (2d Cir. 1993)
(same).
At the same time, we agree with the Second Circuit’s view
that the § 6972(a)(1)(A) “to be in violation of” language does
not necessarily require that a defendant be currently engaged in
the activity causing the continuous or ongoing violation.
Rather, the proper inquiry centers on “whether the defendant’s
actions -- past or present -- cause an ongoing violation of
RCRA.” S. Rd. Assocs. v. IBM Corp., 216 F.3d 251, 255 (2d Cir.
2000); accord § 6972(a)(1)(A). In other words, although a
defendant’s conduct that is causing a violation may have ceased
in the past, for § 6972(a)(1)(A) purposes, what is relevant is
that the violation is continuous or ongoing. That inquiry
“turns on the wording of the [permit, standard, regulation,
condition, requirement, prohibition, or order]” the defendant is
alleged to “be in violation” of. S. Rd. Assocs., 216 F.3d at
255.
In the case at bar, some of the City’s alleged actions
occurred in the past and some are ongoing, but the purported
violations of “any permit, standard, regulation, condition,
requirement, prohibition, or order” promulgated under RCRA are
alleged to be “ongoing.” (J.A. 32-34.) The district court will
30
need to consider this distinction in the context of the specific
facts developed on remand and the particular regulations at
issue. Whether Goldfarb can ultimately prove his numerous
allegations -- including whether there are any ongoing
violations -- is premature for resolution at this early stage of
the litigation. For present purposes, all the Complaint needed
to do was “provide[] sufficient detail about [the] claim to show
that [the plaintiff] has a more-than-conceivable chance of
success on the merits.” Owens, 767 F.3d at 396. The Complaint,
particularly through the above-cited paragraphs, does so.
Consequently, the district court erred in granting the motion to
dismiss, and we vacate the district court’s judgment as to these
claims and remand for further proceedings consistent with this
opinion.
B. Section 6972(a)(1)(B) Claim
Relying on substantially the same alleged conduct recounted
above, the Complaint also alleged the City violated §
6972(a)(1)(B) by pleading it “contributed to the imminent and
substantial endangerment present at the Casino Site and the
Waterfront Parcels” by exacerbating known contamination and
taking no action to curtail its continued migration. (J.A. 35-
36.) The district court concluded the Complaint “failed to
state any plausible factual allegations with respect to disposal
31
of hazardous waste (as opposed to removal of contaminated soil
and other remedial activities)” and dismissed the subsection
(a)(1)(B) claim under Rule 12(b)(6). (J.A. 90.)
Goldfarb contends this, too, was error, arguing the court
improperly focused exclusively on “disposal of hazardous waste”
when the statute also permits claims based on “handling,
storage, . . . or disposal of any solid or hazardous waste.”
Cf. § 6972(a)(1)(B). Goldfarb points to the paragraphs in the
Complaint where violations for “handling” and “storage” are
pled. In addition, he argues that “disposal” has a broader
statutory definition than the district court recognized, and the
Complaint adequately alleges a claim based just on that one
component of the statute as well. Pointing to various
allegations in the Complaint, Goldfarb asserts it adequately
“alleges how [the City is] handling, storing, disposing, etc.,
the waste . . . by removing leaky drums and underground storage
tanks containing such waste as well as by mixing, moving, etc.
contaminated soil, subsoil, and groundwater.” (Opening Br. 45-
46.) Goldfarb maintains these allegations were sufficient to
survive a motion to dismiss.
The Complaint had to plausibly allege that the City “has
contributed or . . . is contributing to the past or present
handling, storage, treatment, transportation, or disposal of any
solid or hazardous waste which may present an imminent and
32
substantial endangerment to health or the environment” to
survive a Rule 12(b)(6) motion. § 6972(a)(1)(B). The district
court only addressed two components of this claim: contribution
and disposal. It first concluded –- in Goldfarb’s favor –- that
the Complaint alleged activities that other courts had held
would constitute “contribution,” i.e., “‘active’ conduct that
may give rise to liability.” (J.A. 90.) Nonetheless, the
district court concluded that the Complaint failed to state a
claim because it did not adequately allege that the City’s
active conduct constituted “disposal . . . (as opposed to
removal of contaminated soil and other remedial activities) at
the Site.” (J.A. 90.) We find that, here, the district court
erred.
As Goldfarb points out, that aspect of a subsection
(a)(1)(B) claim can be satisfied by alleging “handling, storage,
treatment, transportation, or disposal,” and the district court
only noted the absence of “disposal.” (Emphasis added.) This
was error because, at a minimum, the Complaint alleges
affirmative acts by the City that consist of both “handling” and
“disposal.” “Handling” is not defined in the relevant statute
or regulations, but its ordinary definition is broad, “[t]he
action or an act of dealing with a . . . thing; treatment;
management[.]” Oxford English Dictionary. “Disposal,” which is
defined by regulation, is similarly expansive: “the discharge,
33
deposit, injection, dumping, spilling, leaking, or placing of
any solid waste or hazardous waste into or on any land or water
so that such solid waste or hazardous waste or any constituent
thereof may enter the environment or be emitted into the air or
discharged into any waters, including ground waters.” 40 C.F.R.
§ 260.10; COMAR 26.13.01.03.
As discussed in the context of the subsection (a)(1)(A)
claim against the City, paragraphs 91-93 and 137 of the
Complaint allege that the City engaged in various activities on
the Casino Site that would involve “handling” or “disposal.”
These activities include allowing leaks, spills, and releases of
hazardous or solid waste to occur on the property; excavating
and mixing contaminated soil and groundwater; “addressing” and
“remov[ing]” contaminated items from the property in a manner
that “exacerbated the known contamination at and under the
Casino Site and/or the off-site migration of contamination in
the soils, soil vapors and/or groundwater.” (J.A. 28, 36.)
These paragraphs of the Complaint also identify a specific time
period during which the activities are alleged to have occurred
and some of the chemical substances involved.
The City appears to assert the misdirected response that
since its challenged conduct occurred as part of its well-
intentioned efforts to remediate contamination, its actions are
immune from liability under § 6972(a)(1)(B). Not so. Hazardous
34
waste can be improperly spread, and contamination exacerbated,
even during remediation efforts. A party can violate subsection
(a)(1)(B) regardless of the reasons for the actions it takes.
Of course, whether Goldfarb can ultimately prove the allegations
and prevail on his claim is not a matter upon which we can or do
speculate, as that is a task for the district court in the first
instance. What is relevant in reviewing the claims at the
motion to dismiss juncture is that the Complaint sets forth
conduct that could plausibly, if proven, constitute “handling”
or “disposal.” As such, the Complaint adequately alleges this
component of a subsection (a)(1)(B) claim.
The City argues that despite any such error by the district
court, we could nonetheless affirm the district court’s
dismissal of this claim based on the Complaint’s failure to
adequately allege the other aspects of a § 6972(a)(1)(B) claim.
To be sure, we could affirm on different grounds if supported
fully by the record. See Brewster of Lynchburg, Inc. v. Dial
Corp., 33 F.3d 355, 361 n.3 (4th Cir. 1994). But nothing
requires us to do so, and we decline to engage in such lengthy
alternative analyses here. See Singleton v. Wulff, 428 U.S.
106, 120 (1976) (“It is the general rule, of course, that a
federal appellate court does not consider an issue not passed
upon below.”). The district court is in a better position to
consider the parties’ arguments in the first instance, which can
35
be presented at length rather than being discussed in appellate
briefs centered on the issues the district court did decide.
Because the district court’s analysis was incorrect insofar as
it went, we vacate its judgment granting the motion to dismiss
as to the City. We remand to the district court for further
proceedings consistent with this opinion.
V. Claim Against Maryland Chemical
The district court also dismissed the only claim against
Maryland Chemical -- brought under § 6972(a)(1)(B) -- for
failure to state a claim. The court reasoned that because the
statute requires that a defendant “contribute” to the solid or
hazardous waste at issue, the complaint must allege the
defendant affirmatively acted to create or cause the
contamination in order to survive a motion to dismiss. It
concluded that alleging “spilling, releasing, and/or disposing
of hazardous wastes” did not satisfy this requirement because
those incidents could occur “without any active human
participation” by Maryland Chemical. (J.A. 89.)
Goldfarb contends that the district court erred because the
Complaint alleges that Maryland Chemical’s past operations on
the Russell Street Properties led to the current contamination
at that site, which is migrating to the Waterfront Parcels and
the Middle Branch. He posits that the Complaint thus
36
sufficiently pled Maryland Chemical’s “contribution” so as to
state a claim under § 6972(a)(1)(B). We agree.
Although we have not previously opined as to the meaning of
§ 6972(a)(1)(B)’s “contribution” requirement, we are bound to
interpret undefined statutory terms according to their “ordinary
meaning.” Russello v. United States, 464 U.S. 16, 21 (1983)
(stating congressional “silence compels us to ‘start with the
assumption that the legislative purpose is expressed by the
meaning of the words used’” (quoting Richards v. United States,
369 U.S. 1, 9 (1962)). Consistent with that guidance, other
federal circuit courts have looked to the dictionary definition
of “contribute” to conclude that term for RCRA purposes means
that a defendant must “be actively involved in or have some
degree of control over,” “have a share in any act or effect,” or
“act as a determining factor.” Hinds Invs., L.P. v. Angioli,
654 F.3d 846, 850-51 (9th Cir. 2011); Sycamore Indus. Parks
Assocs. v. Ericsson, Inc., 546 F.3d 847, 854 (7th Cir. 2008);
Cox v. City of Dallas, 256 F.3d 281, 294 (5th Cir. 2001); United
States v. Aceto Agric. Chems. Corp., 872 F.2d 1373, 1384 (8th
Cir. 1989). We adopt this interpretation, which therefore
requires a defendant’s active conduct on -- rather than passive
connection to -- the property in order to be deemed a
contributor for § 6972(a)(1)(B) purposes. See Sycamore Indus.
Parks, 546 F.3d at 854.
37
The Complaint adequately alleges such conduct as to
Maryland Chemical. Paragraphs 49-51 allege that Maryland
Chemical engaged in “chemical manufacturing and/or bulk chemical
storage, repackaging and distribution purposes” for over five
decades, and that its “past operations at the Russell Street
Properties resulted in spills and releases of hazardous
substances and/or hazardous wastes including, but not limited
to” four specific spills on portions of the Russell Street
Properties. (J.A. 18-19.) Paragraph 51 alleges the specific
lots on the Russell Street Properties where the spills occurred,
and the types of chemicals involved. (J.A. 19.) Paragraph 134,
in turn, alleges that Maryland Chemical’s “past operations”
contributed to the imminent and substantial
endangerment to human health and the environment which
is present at the Casino Site and the Waterfront
Parcels by unlawfully spilling, releasing, and/or
disposing of hazardous wastes and/or hazardous
substances in the soils and groundwater at the Casino
Site (including, but not limited to [hazardous
chemical compounds]) and by failing to address and/or
remediate the contamination thereafter.
(J.A. 35.) Accordingly, the district court erred in dismissing
the claim against Maryland Chemical for failure to allege
“contribution” under § 6972(a)(1)(B). 10
10Since the district court relied, in part, on a case
discussing “disposal” rather than “contribution,” Nurad, Inc. v.
William E. Hooper & Sons Co., 966 F.2d 837 (4th Cir. 1992), we
point out that the terms have different meanings. Moreover,
once the active component of “contribution” has been
(Continued)
38
As the City did with respect to the subsection (a)(1)(B)
claim against it, Maryland Chemical argues that even if the
district court erred as to this one aspect of the claim, we
could affirm because the Complaint fails to adequately allege
the remaining elements of a § 6972(a)(1)(B) claim. We decline
to engage in that analysis for the same reasons we limited our
review above. We therefore vacate the district court’s judgment
as to Maryland Chemical and remand this claim for further
proceedings consistent with this opinion.
VI.
For the reasons stated above, we vacate the district
court’s judgment dismissing all of Goldfarb’s RCRA claims
established, the “handling, storage, treatment, transportation,
or disposal” component of the claim presents a separate
requirement subject to a different analysis.
For present purposes, we note that RCRA defines “disposal”
to mean “the discharge . . . dumping, spilling, leaking, or
placing of any solid waste or hazardous waste into or on any
land or water so that such solid waste or hazardous waste may
enter the environment or be emitted into the air or discharged
into any waters, including ground waters.” § 6903(3) (emphases
added). As we observed in Nurad, some of these definitions
“appear to be primarily of an active voice,” while others
“readily admit to a passive component: hazardous waste may leak
or spill without any active human participation. [It]
arbitrarily deprive[s] these words of their passive element [to]
impos[e] a requirement of active participation as a prerequisite
to” adequately alleging the “disposal” component of a claim.
966 F.2d at 845. Thus, the above-recited language of the
Complaint also sufficiently alleges the disposal element of a §
6972(a)(1)(B) claim.
39
against CBAC Gaming, the City, and Maryland Chemical and remand
the case for further proceedings consistent with this opinion.
VACATED AND REMANDED
40